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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN C. PEOPLES
Appellant No. 1774 WDA 2013
Appeal from the Order October 21, 2013
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0000316-2006
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.
MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 19, 2014
Appellant, John C. Peoples, appeals from the order entered in the Blair
County Court of Common Pleas, denying his request to terminate new
registration requirements imposed by the Sexual Offender Registration and
Notification Act (“SORNA”).1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
On April 19, 2006, the Commonwealth charged Appellant with seventy (70)
counts of possession of child pornography.2 Appellant entered a negotiated
guilty plea to one of the counts, and the court sentenced him to seven (7)
years’ probation on July 7, 2006. Under Megan’s Law, Appellant was
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1
42 Pa.C.S.A. §§ 9799.10-9799.41.
2
18 Pa.C.S.A. § 6312(d).
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required to register with the Pennsylvania State Police (“PSP”) as a convicted
sexual offender for a period of ten (10) years.3 On February 3, 2009, the
court issued an order granting early termination of Appellant’s probation.
Appellant filed a “Petition to Terminate Megan’s Law Reporting
Requirement” on January 16, 2013, alleging that by letter dated December
3, 2012, the PSP advised Appellant that SORNA extended his registration
period to fifteen (15) years.4 Following a hearing, the court denied
Appellant’s petition on October 21, 2013. Appellant filed a timely notice of
appeal on November 4, 2013. The court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b);
Appellant timely complied.
Appellant raises a single issue for our review:
WHETHER OR NOT THE COURT ERRED BY
DENYING…APPELLANT’S [PETITION] TO TERMINATE
MEGAN’S LAW REQUIREMENT AS “SORNA” IS
UNCONSTITUTIONAL IN THAT IT IS AN EX POST FACTO
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3
At the time of Appellant’s plea, the registration of defendants convicted of
sex offenses was governed by Megan’s Law, 42 Pa.C.S.A. §§ 9791-9799.9.
Under Section 9795.1, an individual convicted pursuant to 18 Pa.C.S.A. §
6312(d) was subject to a ten-year registration requirement.
4
SORNA became effective on December 20, 2012, replacing Megan’s Law as
the statute governing the registration and supervision of sexual offenders.
By its terms, SORNA applies to all individuals who were required to register
under Megan’s Law and who had not fulfilled the required period of
registration as of December 20, 2012. See 42 Pa.C.S.A. § 9799.13(3)(i).
SORNA designates a conviction for possession of child pornography as a
“Tier I” sexual offense, which carries a fifteen-year registration period. See
42 Pa.C.S.A. § 9799.14(b)(9), 9799.15(a)(1).
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LAW ADDING ADDITIONAL PENALTIES WITHOUT [A]
HEARING?
(Appellant’s Brief at 5).
Appellant argues he was notified in 2006 that he was subject to a ten-
year period of registration as a sexual offender under the Megan’s Law
statute in effect at that time. Appellant asserts SORNA is punitive in nature.
He claims the retroactive application of the increase of the registration
requirement from ten to fifteen years under SORNA for his conviction
violates the prohibitions against ex post facto laws in the United States and
Pennsylvania Constitutions. Appellant concludes the court erred by denying
his petition to terminate the new registration requirements and failing to rule
that the application of SORNA to his conviction is unconstitutional.5 We
disagree.6
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5
Just to be clear, Appellant pled guilty to one count of child pornography,
which carried a registration requirement of ten years. Nothing in the
certified record indicates that the duration of the registration requirement
was a negotiated term of Appellant’s plea agreement. Further, Appellant
does not argue that the increased registration period violated any term of
the plea agreement.
6
Preliminarily, the Commonwealth asserts the trial court lacked jurisdiction
over Appellant’s petition to terminate his registration obligations under
SORNA. This Court recently noted that “our case law has yet to adopt a
settled procedure for challenging the retroactive application of a Megan’s
Law’s registration requirement.” Commonwealth v. Bundy, ___ A.3d ___,
___, 2014 PA Super 144, *3 (filed July 10, 2014). Nevertheless, “this Court
has jurisdiction to review orders confirming or rejecting a retroactive
registration requirement.” Id. at *4. See also Commonwealth v.
Sampolski, 89 A.3d 1287 (Pa.Super. 2014) (affirming trial court’s order
(Footnote Continued Next Page)
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“The constitutionality of a statute is a pure question of law; our
standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Elia, 83 A.3d 254, 266 (Pa.Super. 2013), appeal
denied, ___ Pa. ___, 94 A.3d 1007 (2014).
The United States Constitution and Pennsylvania Constitution prohibit
the enactment of ex post facto laws. See U.S. Const. art. I, § 10; Pa.
Const. art. 1, § 17. “A state law violates the ex post facto clause if it was
adopted after the complaining party committed the criminal acts and ‘inflicts
a greater punishment than the law annexed to the crime, when committed.’”
Commonwealth v. Wall, 867 A.2d 578, 580 (Pa.Super. 2005) (quoting
Commonwealth v. Fleming, 801 A.2d 1234, 1236 (Pa.Super. 2002)).
“[T]he standards applied to determine an ex post facto violation under the
Pennsylvania Constitution and the United States Constitution are
comparable.” Commonwealth v. Young, 536 Pa. 57, 65 n.7, 637 A.2d
1313, 1317 n.7 (1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1389, 128
L.Ed.2d 63 (1994). The test of whether a law violates the Ex Post Facto
Clause of the Federal Constitution is as follows:
_______________________
(Footnote Continued)
granting defendant’s petition to enjoin registration requirement on ground
that offense to which defendant pled guilty did not require registration under
SORNA); Commonwealth v. Hainesworth, 82 A.3d 444 (Pa.Super. 2013),
appeal denied, ___ Pa. ___, 95 A.3d 276 (2014) (affirming trial court’s order
granting defendant’s motion to terminate registration requirements of
SORNA on ground that retroactive application of SORNA would offend
negotiated term of defendant’s plea agreement).
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First, we must look to the legislature’s subjective purpose.
Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d
164 (2003). “If the intention of the legislature was to
impose punishment, that ends the inquiry.” Id. However,
if the legislature prefers to refer to the statute as imposing
a civil regulatory scheme, a more searching inquiry in the
second step is required. Id. In conducting this second
step inquiry, “we must [] examine whether the statutory
scheme is so punitive either in purpose or effect as to
negate [the State’s] intention to deem it civil.” Id. The
Supreme Court has held that only the “clearest proof” will
suffice to override the legislature’s preferred classification
of the statute. Id.
Commonwealth v. Perez, ___ A.3d ___, ___, 2014 PA Super 142, *2
(filed July 9, 2014). With respect to the second step inquiry:
[T]he Supreme Court in Kennedy v. Mendoza-Martinez,
372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963),
mandated a seven factor test to determine whether the
effects of a statute are sufficiently punitive to override the
legislature's preferred categorization.
Whether the sanction involves an affirmative
disability or restraint, whether it has historically been
regarded as a punishment, whether it comes into
play only on a finding of scienter, whether its
operation will promote the traditional aims of
punishment—retribution and deterrence, whether the
behavior to which it applies is already a crime,
whether an alternative purpose to which it may
rationally be connected is assignable for it, and
whether it appears excessive in relation to the
alternative purpose assigned are all relevant to the
inquiry, and may often point in differing directions.
Perez, supra at *2-3 (quoting Mendoza-Martinez, supra at 168-69, 83
S.Ct. at 567-68, 9 L.Ed.2d at ___). This list of factors is, however, “neither
exhaustive nor dispositive.” U.S. v. One Assortment of 89 Firearms, 465
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U.S. 354, 365 n.7, 104 S.Ct. 1099, 1106 n.7, 79 L.Ed.2d 361, ___ n.7
(1984).
Additionally:
[W]hen presenting a claim for higher protections under the
Pennsylvania Constitution, the Appellant must discuss the
following four factors:
1) text of the Pennsylvania constitutional provision;
2) history of the provision, including Pennsylvania
case-law;
3) related case-law from other states;
4) policy considerations, including unique issues of
state and local concern, and applicability within
modern Pennsylvania jurisprudence.
Perez, supra at *10-11 (quoting Commonwealth v. Edmunds, 526 Pa.
374, 390, 586 A.2d 887, 895 (1991).
After determining the General Assembly did not intend SORNA to be
punitive, the Perez Court applied the Mendoza-Martinez test and
concluded the effects of SORNA are not “sufficiently punitive to overcome
the General Assembly’s preferred categorization.” Perez, supra at *10.
This Court explicitly held the retroactive application of SORNA did not violate
the prohibition against ex post facto laws in the United States Constitution.
Id. at *11. The Perez Court also rejected the defendant’s identical claim
under the Ex Post Facto Clause of the Pennsylvania Constitution for failure to
conduct the analysis required by Edmunds, supra.
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Instantly, Appellant committed and pled guilty to the offense of
possession of child pornography, prior to the enactment of SORNA. As a
consequence of his conviction, Appellant was required to register as a sex
offender for ten years under the Megan’s Law statute then in effect. While
Appellant was still under registration requirements, SORNA increased
Appellant’s registration period to fifteen years. The effects of SORNA,
however, are not sufficiently punitive to override the General Assembly’s
classification of the statute as regulatory and non-punitive. See id. Thus,
the retroactive application of SORNA registration requirements to Appellant
does not violate the Ex Post Facto Clause of the United States Constitution.
Id. Moreover, in his brief, Appellant makes no argument that the
Pennsylvania Constitution provides greater protection against ex post facto
laws, other than to note generally, “Pennsylvania’s Constitution affords
greater protection than federal law where compelling reasons exist.”
(Appellant’s Brief at 11). Absent more, Appellant’s claim that the
Pennsylvania Constitution bars the retroactive application of SORNA likewise
fails. See Perez, supra. Based on the foregoing, we affirm the court’s
decision to deny Appellant’s petition to terminate his new registration
requirements under SORNA on the ground alleged.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/19/2014
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